From Where Comes the Authority

For John, BLUF:  What is it that true Americans want in this situation?  Nothing to see here; just move along.

---

From Breitbart we have this item from the White House:

"The President told the Leaders that he has the authority he needs to take action against ISIL in accordance with the mission he will lay out in his address tomorrow night," the White House said in a readout of a summit held Tuesday with congressional leaders on the subject.

I feel as though I am back on the playground.  The President claims the authority to do something, but would prefer Congress vote to give him authority to do it.  Yes, I get that he is trying to spread the political risk, but still, either he has the authority or he doesn't.

The polling data shows that the American People are for action, although not necessarily action involving ground forces.♠

Almost two-thirds of respondents in a new Wall Street Journal/NBC News poll believe it is in the nation's interest to confront the group, known as ISIS and as ISIL, which has swept through Syria and northern Iraq. Only 13% said action wasn't in the national interest.

The problem with public support is that it is probable good for about 90 days and then it will depend upon the judgment of the People as to if we are doing the right thing, morally and militarily. But, in the mean time, we are back to the question of if the President needs an Authorization to Use Military Force (AUMF), a sort of 21st Century Declaration of War.  Under the War Powers Resolution the President can use military force for 60 days before he needs either a Congressional approval or a Declaration of War.  Frankly, Presidents declare the War Powers Resolution unconstitutional but still go along with its notification provisions.  It he ignored the War Powers Resolution it might go to the US Supreme Court, or if Congress was really unhappy, to impeachment and trial in the Senate.  I doubt that is going to happen here.  A deal will be cut and the President will get an Authorization to Use Military Force.

Here is the Lawfare Blog on the issue—Four of The Would-be ISIS AUMFs.  The author of the post is Cody Poplin and here is the lede:

While Congressional leadership may be hesitant to take up a vote authorizing the president to use military force in Iraq and/or Syria against ISIS in the coming weeks, we’ve seen several different authorizations put into play—with different requirements, and by different members of Congress.  Below, I note four of the would-be ISIS AUMFs that are kicking around right now in the House and Senate, along with remarks by the bills’ sponsors.

Note that none of the four is from one of our Senators from Massachusetts, or any of our Representatives in Congress.

• Rep. Frank Wolf (R-VA)
• Senator Bill Nelson (D-FL)
• Rep. Darrell Issa (R-CA)
• Senator James Inhofe (R-OK)

Here is the summary paragraph:

Many variables remain.  Among other things, it remains to be seen how hard these members will push their proposals, and relatedly whether President Obama will seek explicit legislative authorization (he has suggested he believes that he already has the authorization he needs) or if he will pursue avenues—perhaps by contending that congressional appropriations for military action against the group amount to authorization, as Ryan Goodman over at Just Security has suggested.  Meanwhile, as Lawfare’s own Jack Goldsmith has theorized, the administration may be making piecemeal use of War Powers Resolution letters, so as to later argue that each letter was mission-specific and started the running of separate, 60-day time clocks.

Given this White House, and the split in Congress between a Democrat Senate and a Republican House of Representatives, it is possible that they will just dribble the ball down the field until they get into a hard spot and then they will have to act.  And January, and a new Congress, is almost four months away.

Let us not kid ourselves.  This is hard stuff.  What looks like baby steps now may turn into a marathon in a few months.  The President needs to lay out a good plan, a convincing plan, and Congress needs to examine it and ask questions and then vote their support, or not.

Regards  —  Cliff

♠  A recent Wall Street Journal/NBC News poll.  Some 40% were for air attacks and an additional 34% would put "boots on the ground".